Saturday, August 13, 2011

Google's reexamination requests against two Lodsys patents don't stand on their own

Wired.com just reported that Google filed reexamination requests with the USPTO late on Friday, seeking the invalidation (or at least narrowing) two of Lodsys's four patents: the '078 patent and the '565 patent, both of which were used in litigation against app developers.

While I agree with Google's senior vice president and general counsel Kent Walker that those patents should never have been issued, I don't consider those reexamination requests -- unless they will be accompanied by more forceful and useful measures very soon -- a serious commitment to supporting Android app developers against trolls. If this is all that Google does, it's too little, too late, and calling it "half-hearted" would be an overstatement.

Let me make this very clear: reexamination of Lodsys's patents certainly could have positive effects further down the road. It's possible (though by no means certain) that Lodsys's ongoing litigation might be stayed - however, as Wired's article explains, this happens in the Eastern District of Texas only "around 20 percent of the time". In other words, there's an 80% likelihood, just based on statistics, that Google's reexamination requests won't delay Lodsys's litigation.

Google did a pretty good job on its reexamination requests against Oracle, and in that case, the likelihood of a stay is greater than 20%. I watch the case closely, and I think the judge will stay that case at least in part unless he can reach an agreement with Oracle on the number of patent claims to be asserted at trial. But a fight between Oracle and Google has completely different parameters and litigation economics than one between Lodsys and little "indie" app developers.

For app developers, the critical question is still what they should do when they receive a Lodsys letter (and when they get formally sued by Lodsys). They need a basis for deciding what to do next, and Google's reexamination requests don't change the calculus of a rationally-acting developer in any meaningful way.

Lodsys keeps sending out assertion letters. This morning I just got yet another message, via my blog's contact form, from a recipient of those letters. He asked me to put him in contact with fellow developers. I gave him three names and addresses, including the Electronic Frontier Foundation, which is in touch with many affected developers.

Apple is reasonably likely to be admitted as an intervenor in the ongoing litigation, but the scope of its proposed intervention is narrow: it's strictly limited to the question of whether a license agreement that Apple entered into with a previous owner of those patents (Intellectual Ventures) extends to developers, and while that defense may succeed, one can have reasonable doubt about it. Google took an alternative route by filing reexamination requests, which is, as Wired's article mentions, a relatively cheap way to challenge patents, but for the reasons I explained, it still -- neither on its own nor in combination with Apple's motion for a narrowly-focused intervention -- doesn't provide app developers with a basis on which they could simply ignore Lodsys's letters and take the risk of being sued.

Unless and until Apple and Google provide blanket coverage, I maintain my recommendation that app developers should give serious consideration to a license agreement on reasonable terms. By fighting it out with Lodys, it may be possible to get away without having to pay Lodsys -- but for more than 99% of all app developers, it's probably not worth taking the risks involved.

Many app developers may feel great about the notion that two big brothers -- Apple and Google -- have entered the fray. But on closer scrutiny, it turns out that they take measures that may or may not succeed, falling far short of what would really be needed.

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About Me

Florian Mueller used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.